Recanting the Libertarian Case Against Gay Marriage

In April of 2011, The American Conservative published an article[1] written by me entitled “The Libertarian Case Against Gay Marriage.” In addition, the magazine reported[2] on a debate I had with gay marriage advocate Jonathan Rauch, sponsored by American University, in which I elaborated on the arguments made in my article.

I want to take the opportunity to recant—or, rather, publicly rethink—my position.

The essence of my argument against gay marriage was that it would push an activity—gay relationships—that previously existed “in the realm of freedom” into government-occupied territory. In my TAC piece I wrote:

Of course, we already have gay marriages. Just as heterosexual marriage, as an institution, preceded the invention of the state, so the homosexual version existed long before anyone thought to give it legal sanction. Extending the authority of the state into territory previously untouched by its tender ministrations, legalizing relationships that had developed and been found rewarding entirely without this imprimatur, would wreak havoc where harmony once prevailed.

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I was content with this “hold the line” stance, which drew a line in the sand between the unconquered territory of gay relationships and the government-occupied territory of heterosexual marriage, until I applied it to other areas… and to my own life experience. I kept up the battle against this statist “invasion” on Twitter, where I railed against the Supreme Court decision as “a disaster for gay people”—and then I had an epiphany.

What—I asked myself—about marijuana?

Now this may seem like a non sequitur, but think of it this way:

Smoking or otherwise ingesting marijuana is an activity—like homosexual relations—that is illegal and has been frowned upon by polite society up until the very recent past. It is still illegal under federal law, although several states have decriminalized its use. It is, in short, a province of that “unconquered territory” where State rules and regulations don’t apply. The FDA doesn’t have any standards applying to its content, production, and sale. Except in those states where it is legal—for “medicinal” or other purposes—the government doesn’t tax it. It’s part of the “realm of freedom.”

Does that mean it shouldn’t be made legal?

Of course it doesn’t.

Ironically, my pro-gay marriage epiphany had its origins in the course of reading an article[3] in National Review opposing gay marriage by C.C. Pecknold, an associate professor of theological, social, and political thought at the Catholic University of America in Washington, and author of Christianity and Politics: A Brief Guide to the History. Pecknold writes:

One reason why marriage is not mentioned in the Constitution is that the Founders recognized that the institution of marriage was a common good of the society and prior to politics. Put differently: Constitutional silence on marriage indicates a commitment to limited government that has so far eluded our debates about marriage in this country….

The fundamental distinction on which a commitment to limited government rests is developed in conversation with ancient classical thought. Augustine was probably the first great theorist of ‘society’ as something that is ‘pre-political’ and that finds its most basic unit in the family. But as Thomas Aquinas notes, Aristotle also recognized this. The Philosopher says in the Nichomachean Ethics that man is more inclined to conjugal union than political union. Human beings are ‘social animals’ before they are “political animals.’ [Emphases added]

Pecknold goes to argue that this justifies the State’s interest in recognizing and defending marriage as an institution, but he doesn’t realize that his premise—“The political union,” he writes, “is subsequent to the prior reality”—undermines his case.

For in looking at my own life, and the lives of my gay friends, I saw that this also applied to us. That is, I looked at my own 19-year relationship with the same person, and thought: Well, yes, “the political union is subsequent to the prior reality”—but that doesn’t mean the political union is invalid (although it may not be necessary, given the preferences of the individuals involved).

While Pecknold goes on to give an ontological-mystical spin to his case against gay marriage, arguing that “this provides the West with an anthropology for understanding that future citizens come into the world through the union of a man and a woman,” this is easily separable from the rest of his line of thought, which is contained in these very powerful sentences:

When the state recognizes the nature of marriage as something prior to itself, it secures its own limits. When we acknowledge and recognize that by nature we are both social and political, we suddenly change the nature of politics. Our government no longer is tempted to define the whole of reality.

The irony here is that Pecknold’s piece tried to show that gay marriage is incompatible with the principle of limited government: ironic because he’s arguing for extending the State’s authority to prohibit a practice that existed “prior to itself.”

That homosexuality existed prior to the founding of the American Republic is beyond dispute: ever hear of Damon and Pythias, or Zeus and Ganymede? The scholar John Boswell documented the existence of homosexual unions throughout ancient[4] and medieval[5] times, and shows that they were given some form of legal recognition during the Roman era.

I still maintain that the form of heterosexual marriage may not function all that well in homosexual relationships: e.g. if “infidelity” is grounds for divorce, as it is in some states, then we’re going to see a lot of gays—men in particular—making appearances in divorce court. After all, we’re talking about men here. Gay marriage advocates like Jonathan Rauch who hope gay marriage will inaugurate a world in which young gay men “save” themselves for marriage are likely to be sorely disappointed. And I stick to my prediction that most gays—again, I’m thinking of gay men—won’t be tripping over themselves in a rush to get to the altar. (Gay women are another matter entirely.)

However, none of this makes the case against gay marriage as a viable option: many older gay men, tired of life in the fast lane, will no doubt take advantage of its legal benefits—e.g. establishing property rights in inheritance—and that’s all to the good.

A caveat: the victory of gay marriage advocates didn’t take long to develop into an attack on the churches, and the threat of a legal assault on all those religious institutions that “discriminate” against gays. The ACLU has already repudiated[6] its support of the Religious Freedom Restoration Act, and we’re seeing calls for the revocation of churches’ nonprofit status. This was entirely predictable: indeed, I did predict it in my debate with Jonathan Rauch. But even I’m shocked at the swiftness of the gathering anti-clerical storm: the ACLU’s repudiation of its defense of religious liberty occurred the day after the Supreme Court decision. They’re probably already writing the legal briefs demanding that gays be allowed to recite their marriage vows in St. Patrick’s Cathedral.

Libertarians and others who uphold the principles of a free society must unequivocally defend the churches against this vicious and small-minded assault. In the present context, Christians are the new gays—pre-Stonewall, pre-Lawrence, pre-Obergefell.

“Libertarians and others who uphold the principles of a free society must unequivocally defend the churches against this vicious and small-minded assault.”

Likely to be as effective in preventing all the wars and wars-to-be conducted as antiwar.com has been.

Sometimes given the momentum, it’s not possible to reverse course in either love or war, until all the inevitabilities play out to their ultimate conclusions.

The ACLU has always been big on defending the most abysmal and defective exemplars of dysfunctional religion, kind of a straw man argument to prove their free speech bonafides regarding religion. It’s just PR to basically undermine Christianity’s influence as “nutty.” Religious faith as expressed in orthodox Christianity, however will never be defended, and never has been.

But thanks for the kind thoughts.

#2 Comment By Dinna Ella On July 2, 2015 @ 12:38 pm

Brilliant stuff, as usual, from Raimondo. However, there are a couple of fundamental errors.

First, pre-Obergefell, long-term gay coupling and co-habitation was not “prohibited,” nor has anyone in these debates argued for that.

Second, the rights of property and inheritance that Justin mentions, could easily be accommodated (and are accommodated, I believe) under “civil union” laws. And to be clear, SSM advocates are for the most part only tangentially motivated by a concern for property rights. The main motivation has been a desire for public validation. But even then, as Justin notes, validation isn’t enough — instead, even in victory, many SSM supporters now want to go after the civil rights of churches, Christians and anyone else who dares dissent from the new orthodoxy.

#3 Comment By Fran Macadam On July 2, 2015 @ 12:43 pm

And it simply is too bad this purely material issue, as well as those of visitation and health care, could not have been addressed by changing inheritance and other laws and regulations to reflect the wishes of those involved, rather than supposedly changing the nature of marriage itself by legal fiction.

A corporation is no more a person, either – and the legal fiction drawn out from the 14th amendment has produced anomalies that in the end have proven destructive to liberty and democratic accountability.

“However, none of this makes the case against gay marriage as a viable option: … establishing property rights in inheritance—and that’s all to the good.”

Making law that flies in the face of realities always has had pernicious effect, whatever the hopes at the time, because no consequences can be accurately predicted by misunderstanding.

#4 Comment By DJ Wambeke On July 2, 2015 @ 12:51 pm

Quoting John Boswell to make the claim that gay marriage is nothing new in Christendom? Oh dear. Might want to at least understand the [7] before latching onto that idea too closely.

#5 Comment By Conservative-Libertarian On July 2, 2015 @ 1:20 pm

The analogy between marijuana and same-sex marriage breaks down.

I must be missing something, since I doubt your argument is as bad as I see it now.

When it comes to marijuana, there is a prohibition in privately using the stuff. With same-sex marriage, there is no prohibition in all the private activities that can be done with it (e.g., living together and sleeping together).

Hence this is not so much about freedom, it is about ideology and promoting a particular ideology.

In seeing “marriage” as prior to the state, that should just call for getting government to exit this business completely. Also: it may be that in viewing it as “prior,” it is seeing it this way from a natural law tradition which thereby excludes same-sex marriage. That argument is not “mystical,” and that is just a strawman, but based on rational argument based on teleology and essentialism: [8]

Whatever we think of that (“traditional”) natural law argument, the state shouldn’t be in this business. The federal government shouldn’t impose on all the states. Libertarians should be absolutely against that. Better for individual states to control this, if government is to be involved at all.

Today’s agenda has nothing to do with freedom and brings no one closer to it in any practical, real day-to-day life sense.

#6 Comment By The Professor On July 2, 2015 @ 2:43 pm

@Dinna Ella

“Second, the rights of property and inheritance that Justin mentions, could easily be accommodated (and are accommodated, I believe) under “civil union” laws. And to be clear, SSM advocates are for the most part only tangentially motivated by a concern for property rights. The main motivation has been a desire for public validation.”

Just curious: How do you know what motivates our desire for marriage equality? The actual cases before the court were about: having one husband’s marriage recognized on the other’s death certificate, and one of the other couples wanted to protect their children (only one parent could adopt in Michigan) in the event one of them fell ill. Besides the simple fact that I love him and want to spend the rest of my life with him, my civil marriage helped insure my rent stabilized lease would pass to my husband in the event of my death (rather than a landlord be able to remove him from his home of eight years), to be placed on his insurance (he works for the state as a teacher) and to insure the investments and savings we both worked for would be properly inherited. Not to mention we both have family members who are not as supportive and could indeed interfere in medical and after death decisions which in marriages rest with the spouse.

The public validation, separate from all the tangible legal benefits, is a nice side effect. But in our case, and the case of every other married same sex couple we know, getting validated by anything other than the law is not really consequential.

#7 Comment By panda On July 2, 2015 @ 2:55 pm

“Second, the rights of property and inheritance that Justin mentions, could easily be accommodated (and are accommodated, I believe) under “civil union” laws. ”

Except that even as late as 2012 (see North Carolina) gay marriage bans also included bans on civil unions. Same with DOMA. You really shouldn’t falsify history we can all remember..

#8 Comment By EliteCommInc. On July 2, 2015 @ 3:12 pm

Just a reminder that libertarians and those arguing from a position not grounded on some tangible realities can tal themselves into and out of anything.

More argle-bargle and jiggery-pokery to come I am sure.

#9 Comment By hooly On July 2, 2015 @ 4:13 pm

For God’s sake, this is so simple.

Do gays pay taxes, have gays served in the military, … if yes, then gays should have the same rights and privileges as the rest of us. Otherwise gays are second class citizens, something un-American.

#10 Comment By Jeff On July 2, 2015 @ 5:36 pm

hooly says:
July 2, 2015 at 4:13 pm
For God’s sake, this is so simple.

Do gays pay taxes, have gays served in the military, … if yes, then gays should have the same rights and privileges as the rest of us. Otherwise gays are second class citizens, something un-American.

When so called ‘gay marriage’ is actually equivalent to real marriage, then they should be treated equally. But alas, they are not. You know equivalency implies sameness? The reproduction issues not withstanding, ‘gay marriages’ are fundamentally different than natural married. Case and point, read above

I still maintain that the form of heterosexual marriage may not function all that well in homosexual relationships: e.g. if “infidelity” is grounds for divorce, as it is in some states, then we’re going to see a lot of gays—men in particular—making appearances in divorce court. After all, we’re talking about men here. Gay marriage advocates like Jonathan Rauch who hope gay marriage will inaugurate a world in which young gay men “save” themselves for marriage are likely to be sorely disappointed.

And read here:

[9]

and here

[10]

For normal, natural marriages, monogamy is THE expectation and is a grounds for divorce. For fake gay marriages (which are nothing other than cultural appropriation) monogamy isn’t practiced or desired. Proponents of gay marriage cite benefits and freedom as the motivation for their cause. This is demonstrated by their so called marriages. Their marriages provide them freedom and material benefits from society but requires no substantial sacrifices. Real marriage (which they obviously know nothing about) is about not defined benefits and freedom. It’s defined by commitments and sacrifices.

A union between 2 men or 2 women are not the same as a union between a man and a woman. Therefore, there is no equivalency between a so called ‘gay marriage’ and a real marriage.

#11 Comment By Leon Berton On July 2, 2015 @ 6:27 pm

Mr. Raimondo is not addressing a central issue.

In general, words should not be relegated to merely what each and every person wishes them to mean, for such compromises any referential basis in reality to make generalized determinations in law and other fundamental matters.

The central argument remains for many that ‘marriage’ as a designation ‘ipso facto’ refers to hetero-gendered union.

One can readily concede civic equality for this or that union, if one wishes (although such might or might not in each instance be advisable).

However, it seems to be cheating to blithely inject nominalist assumptions into the discussion and ignore the meaning of terms and their specific referents.

Once that is done, is there any anchor to meaningfully differentiate ‘heterosexual marriage’ from ‘homo-sexual marriage.’

To advocate a univocal application of ‘marriage’ for both seems difficult unless one is willing to prescind from the ontological referent and coherent application of certain terms.

#12 Comment By Mike Ehling On July 2, 2015 @ 9:17 pm

And let’s remember that a Religious Freedom Restoration Act is also important to protect churches from Sheldon Adelson’s lawfare when denominations such as the United Church of Christ (and last year the Presbyterian Church U.S.A.) vote to divest themselves from corporations like Hewlett-Packard, Motorola, and Caterpillar, votes that could be subject to government sanctions under anti-BDS laws.

#13 Comment By EliteCommInc. On July 2, 2015 @ 10:39 pm

“Do gays pay taxes, have gays served in the military, … if yes, then gays should have the same rights and privileges as the rest of us. Otherwise gays are second class citizens, something un-American.”

Nonsense.

But it is simple. Marriage is not about merely payig taxes. It is not mere military service. Millions of single people do the same. Do we call those single people married?

No. Marriages , even bad marriages, even marriages that fail, provide something single, and same sex unions do not.

They serve as the model by which stable societies and communities, survive, thrive and maintain their existence. Mom and dad invest in their prodigy, not just financially, but they also provide some semblence of what it means to be a member of that community.

The homosexual union, unto itself, provides nothing that does not require heterosexual unions and relations.

Your right it is simple. But as with marriage for the simlicity to be of value for itself and others, it must have the right formula.

#14 Comment By Dinna Ella On July 3, 2015 @ 11:38 am

panda,

You shouldn’t use non sequiturs as a basis for accusing people of lying when they plainly didn’t.

The Professor,

You cite your personal situation to refute a statement that says “for the most part.” How many direct quotes citing the desire for validation would satisfy you?

#15 Comment By Apolitical On July 3, 2015 @ 2:55 pm

The timing of this epiphany and public recantation is curious. It is a fearful thing to be on the wrong side of history.

#16 Comment By Apolitical On July 3, 2015 @ 3:25 pm

“The irony here is that Pecknold’s piece tried to show that gay marriage is incompatible with the principle of limited government: ironic because he’s arguing for extending the State’s authority to prohibit a practice that existed ‘prior to itself.'”

Perceived irony is not an argument. A limited government can legitimately prohibit ancient practices, e.g. murder. A government that prohibits nothing ancient would find little to govern, and afford the people no protection against anything.

#17 Comment By Mick Lee On July 3, 2015 @ 6:06 pm

“The irony here is that Pecknold’s piece tried to show that gay marriage is incompatible with the principle of limited government: ironic because he’s arguing for extending the State’s authority to prohibit a practice that existed “prior to itself.”

No. The irony is “gay marriage” is being imposed in all times and all places by a powerful government which has reached in spheres once outside its authority. “Gay marriage” is another step in the long march the State to rule in all aspects in our lives.

#18 Comment By EngineerScotty On July 3, 2015 @ 7:00 pm

There is an old nostrum about how black markets are the most free– the state, after all, cannot effectively regulate or tax that which it bans.

Perhaps that is true in some sense, but no market with a sword of Damocles hanging over it can be truly said to be free. Truly free activities are those that can be done openly, in flu view of the public and the law.

#19 Comment By redfish On July 3, 2015 @ 7:39 pm

You can argue either way, and I’m not going to go into that subject, though I’m struck by the choice of language in this op-ed,

Smoking or otherwise ingesting marijuana is an activity—like homosexual relations—that is illegal and has been frowned upon by polite society up until the very recent past.

The irony here is that Pecknold’s piece tried to show that gay marriage is incompatible with the principle of limited government: ironic because he’s arguing for extending the State’s authority to prohibit a practice that existed “prior to itself.”

Who was arguing for anything to be illegal or prohibited? Not recognizing same-sex marriage for the purpose of legal benefits didn’t ever prevent gay couples from formalizing their relationships with contracts.

#20 Comment By redfish On July 3, 2015 @ 7:55 pm

@The Professor,

I don’t have anything against your case for same-sex marriage, although I don’t see how Dinna Ella is wrong that those things could be achieved with civil unions.

I also don’t see how those things couldn’t apply to a lot of relationships that don’t involve gay couples. If I was rooming with my friend or my brother, and neither of us were planning to marry in the foreseeable future, it would be great if my lease could pass onto them if I died, and it would be great if I could also get them health benefits. It would also be great to get the hospital visitation benefits, and everything else that would come with civil unions.

My biggest reservation with the pro- side has been how they’ve made the case all about discrimination against gays, as if gay couples were unique victims of these not receiving these legal marital benefits.

#21 Comment By Patrick D On July 3, 2015 @ 8:58 pm

@redfish

“My biggest reservation with the pro- side has been how they’ve made the case all about discrimination against gays, as if gay couples were unique victims of these not receiving these legal marital benefits.”

Exactly. My grandmother had a couple cousins who realized they would never marry so they pooled their limited resources to make a nice life for themselves. They also adopted and raised a nephew whose parents were a mess.

The “general welfare” is enhanced greatly when individuals partner up to deal with the unique hands life has dealt them. The system shouldn’t penalize the unmarried with legal fees to acquire what the married get for free just because one arrangement includes sex and romance and the other doesn’t.

#22 Comment By miguel jose On July 4, 2015 @ 6:53 am

Opposition to redefining marriage is not “arguing for extending the State’s authority to prohibit a practice that existed “prior to itself” because prohibition has nothing to do with it.

In my state of Michigan, we amended the Michigan constitution in 2004 by means of a ballot proposal called the Michigan Marriage Initiative which simply defined marriage as the union of one man and one woman. Since the amendment did not prevent anyone from getting married and did not force anyone to get married, there is no unconstitutional coercion of any kind by merely defining what marriage is. In my opinion, the high court’s decision simply represents the usurpation of the democratic process by five members of the Supreme Court. Listen to Chief Justice John Roberts’ dissent:

“Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law,”

And Justice Scalia:
“Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best…. But the Court ends this debate, in an opinion lacking even a thin veneer of law.”

#23 Comment By JohnE_o On July 4, 2015 @ 12:52 pm

[Marijuana] is, in short, a province of that “unconquered territory” where State rules and regulations don’t apply.

That’s news to me – the State in which I live will arrest me and confiscate my property if I’m caught growing marijuana.

#24 Comment By grumpy realist On July 4, 2015 @ 7:11 pm

Well, it’s easy to tell here who has had legal training and who hasn’t….

Marital law doesn’t map very well on to contract law, which is the pigeonhole most libertarians try to shove it into. There’s also a whole set of privileges available to married couples that couples under civil unions don’t have (the right to not be forced to testify against the other, for instance.) Plus we’ve already seen too many cases where in spite of that Power of Attorney, hospitals kept gay partners from their beloved’s side.

In short, single sex marriage needs the same protection that traditional marriage has, mainly because there are a lot of jerks out there.

#25 Comment By Siarlys Jenkins On July 4, 2015 @ 11:50 pm

The Fallacy of Analogy rears its head once again.

The natural state, untainted by state action, would be that those who find or cultivate marijuana plants can ingest them, because they are available.

That could reasonably be analogized to criminal penalties for homosexual acts, which are also a natural option (whether or not there is anything “unnatural” about finding such an option attractive).

No law ever banned gay marriage. The controversy has been about giving affirmative legal sanction to these existential bonds. It remains arguable, although not enforceable, that there is no constitutional mandate to extend public approbation to a human bond merely because it exists.

I suppose one could argue that gays are entitled to state regulation whereby they may assure themselves that their prospective marriage partner does not have AIDS, or other STD’s, which is already part of the marriage process for heterosexuals. That would be on all fours with those who ingest marijuana having a right to FDA testing to make sure they’re getting clean dope of known potency.

But that really hasn’t been the content of the public debate, nor of Justice Kennedy’s opinion.

#26 Comment By EliteCommInc. On July 5, 2015 @ 12:07 am

“The system shouldn’t penalize the unmarried with legal fees to acquire what the married get for free just because one arrangement includes sex and romance and the other doesn’t.”

There’s one problem with this abalysis. Singles are not penalized at all. Most marriages result in children

Those children are members of community.

Parents invest an enormous aount of money time and effort in child rearing, which includes modeling and the rules of behavior and social cultural practices. Taxes are designed to encourage the same.

#27 Comment By John Seiler On July 5, 2015 @ 4:28 am

It’s amusing Justin takes the side of the paralogists on the court of imperial regime he otherwise trenchantly attacks three times a week.

#28 Comment By Wondering On July 5, 2015 @ 3:21 pm

Just exactly how does two men or two women equal a man and a woman. Doesn’t work logically. Those that think the two are equal are detached from reality… detached from reality.

#29 Comment By AJ On July 5, 2015 @ 11:14 pm

Justin,

I applaud what you do at Antiwar.com, but I disagree with you about Obergefell. It’s a victory for the State and not for individualism. As you pointed out in a recent post over there (see, I really do follow you), the State will use Obergefell and gay rights generally as just another club in its arsenal, to set the world aright in its driving of foreign policy, especially against Russia, as you pointed out. Have you changed your opinion so quickly, like, from a week ago?

Your original thoughts, about gay marriage not being dependent on recognition by the State, were correct in my opinion. And I would say the same applies for traditional marriage, and I know you’ve heard this before. As Ron Paul says, we need to get the government out of the marriage business. The State has no compelling interest in regulating marriage, it is not an essential State function. Sadly now you disagree.

As a fellow libertarian, I cannot accept, in my heart of hearts, that my marital status is dependent on recognition by the State, but rather by God. Unfortunately you, owning no god, have no such recourse. Owning no god, you now turn to the State. Why, Justin?

Why bow to the State? The State that ransacked and harassed your website and by its actions drove away contributors and has left you reeling and scrambling for funds. That State.

I think you need to rethink your philosophy a bit, it is not entirely consistent. You are trying to kiss the sword that will execute you. Libertarianism is a balance of the heart and of the head, you have given yourself too far to the heart. You have caved, showing only the narrow limits of your libertarian atheism.

All you have shown us is there is really no such thing as a gay libertarian, especially when the State can offer you more.

#30 Comment By Robin Adair On July 6, 2015 @ 3:09 am

Justin,

Here’s to a speedy recovery.

Hope you’re back soon at antiwar.

Personally I think your original views on Gay Marriage were right to begin with and didn’t need any revision.

Marriage is far as I’m concerned whether a Heterosexual or Homosexual union should be a contract between two consenting adults and nothing more.

From what I understand the Supremes based their decision regarding Gay Marriage on the 14th Amendment equal protection clause.

In other words since the majority of the states allow Gay Marriage then all of states should conform.

Actually this decision is not as radical as many on the right and left seem to think.

It was applied in the case of segregation many years back. Though I don’t have the legal precedent since I am not a legal historian but as I wrote the concept is not new.

Though I don’t understand how this decision would throw IRC 501 Ciii under the bus of various religions who do not support Gay Unions.

Even though I do not agree with their belief. I do support their right to believe it. Just as there are many things people say that I do not agree with that I acknowledge their right to say.

By the way the First Amendment protects not only freedom of speech but *religion* as well.

Seems that in my opinion the ACLU is now being hypocritical when they go after Church’s who do not support Gay Marriage.

#31 Comment By William Dalton On July 6, 2015 @ 9:05 am

The defect in the comparison between gay marriage and marijuana is that, at least since Lawrence, there have been no laws prohibiting gay relationships, and certainly not gay wedding ceremonies, which were never criminal. Possession or sale of pot, depending upon quantity, will still land you in jail in all 50 states.

The cause of “marriage equality” has ALWAYS been the drive to get state recognition of gay relationships as marriages, as though to get Federal judges to say “you are married”, just like married people, can give legitimacy to gay relationships, not just legality.

I think what you would like for marijuana use – that it can be grown and used, even sold, without threat of jail, but also without threat of taxation and regulation, is what existed for “gay marriage” before Obergefell. But, as you recognize, no longer.

In point of fact, however, the state will not recommence to police people’s bedrooms, checking to see if people have their marriage licenses before checking into a motel together. The marriage license has no teeth to it, it is solely a device for conveying society’s imprimatur of legitimacy. And, in that, the state has no business. The state may rule what is legal. We all have the right to determine, for ourselves, what is legitimate and to what we will give our approval.

It is time to adopt the policy now endorsed by Rand Paul – repeal all statutes relating to marriage, rewrite our laws pertaining to households and children to focus upon those facts rather than marriage (more children are born to unwed couples than wed ones), and leave the subject of marriage, like baptisms and funerals, to the church to set their rules and provide “legitimacy”.

#32 Comment By Captain P On July 6, 2015 @ 9:21 am

Justin,

Your main argument is hard to parse, and I think it’s because you conflate homosexual relationships with “gay marriage.” Now, a couple decades ago it WAS indeed officially illegal to engage in homosexual relationships due to anti-sodomy laws. However, those were all struck down by the Lawrence decision. After that, gays no longer had to fear criminal liability for their sexual activity.

Your marijuana analogy would have made sense at the pre-Lawerence point- when some states officially criminalized sodomy, but rarely enforced it. However, post-Lawrence, there were no legal prohibitions on gay relationships; what gays complained of was a LACK OF PRIVILEGES for their relationships. The legal institution of marriage is much more complex than mere freedom to have a romantic-sexual relationship. It’s an institution that gives MANDATORY, non-negotiable rules for parental reponsibilities as well as DEFAULT rules for property ownership and distribution (they’re default because couples can get around them with pre-nuptial agreements, will provisions, and property agreements).

The gov’t never “banned” same-sex marriages- it simply did not have a legal category for them. A proper analogy here would be licenses for bicycles. The state does not “ban” bicycle licenses- it simply declines to issue vehicle licenses for bicycle ownership.

#33 Comment By J.Clifton On July 6, 2015 @ 9:31 am

While Justin is free to re-consider his view, I also don’t get what changed in a decade that makes his original assessment in any way flawed. A contract between two people is a private matter that the state HAS encroached upon. The federal government still has no business casting immorality as a civil rights matter, or to redefine an institution which has been understood for ages to be under the province of religion.

And in what sense have the 13-14 red states (who were never going to confer legitimacy unto gay marriage) NOT had social liberalism imposed on them, and their sovereignty (aka freedom) crushed? There has been a billion dollar campaign to drumbeat people into the PC position, however, pressure under which Justin may have succumbed.

#34 Comment By philadelphialawyer On July 6, 2015 @ 11:05 am

As for the argument that democratic-republican decision making and Federalism have been subverted, I would argue that cases like these present the ideal situation for non majoritarian, Federal judicial intervention. The main purpose of the 14th Amendment was to prevent the majority of voting citizens in particular States from discriminating against minorities. And, even more generally, discrimination against, as Justice Stone put it, “discrete and insular minorities,” is the classic situation in which recourse to democratic republican politics is either impossible or impractical, and so the courts should step in.

#35 Comment By William Dalton On July 6, 2015 @ 2:00 pm

philadelphialawyer:

“The main purpose of the 14th Amendment was to prevent the majority of voting citizens in particular States from discriminating against minorities.”

Well, no it wasn’t. The purpose of the 14th Amendment was to assure that black and white people would, alike, be recognized as citizens of their states and of the United States, and that the laws of the states would be applied to them alike, without racial distinction. It was not, and could not, have imposed upon Americans an obligation not to engage in such discrimination in their own affairs, where, not being instruments of the government, they owe no other citizen any obligation other than to obey the law. The Civil Rights Laws which began this ever-enlarging process of submitting citizens’ affairs to government supervision were a product of the politics of the Twentieth Century, not the Nineteenth.

#36 Comment By philadelphialawyer On July 6, 2015 @ 5:52 pm

WD:

Race was the occasion for the 14th Amendment. That hardly means the provisions of that amendment are restricted to race, and SCOTUS has never held it to be such, not even in the 19th Century.

“It was not, and could not, have imposed upon Americans an obligation not to engage in such discrimination in their own affairs, where, not being instruments of the government, they owe no other citizen any obligation other than to obey the law. The Civil Rights Laws which began this ever-enlarging process of submitting citizens’ affairs to government supervision were a product of the politics of the Twentieth Century, not the Nineteenth.”

Marriage laws are State action.

The Federal Civil Rights laws have been upheld by SCOTUS as an exercise of Congress’ power over interstate commerce, not as enforcement of the 14th Amendment.

State civil rights laws are based on the police power, which predates the Constitution.

As an aside, at common law (both in Great Britain and the colonies, and, subsequently, the USA), certain “private individuals,” such as inn owners and common carriers, were required to refrain from discrimination and serve all comers (if able to pay).

I would also point out that Civil Rights laws are part of “the law” which must be obeyed by private citizens viz a viz other private citizens. So, even on your own terms, your argument makes no sense.

#37 Comment By philadelphialawyer On July 6, 2015 @ 5:53 pm

I would also point out that, contrary to what you say, Nineteenth Century politics also produced Federal Civil Rights laws, some of which, but not all, were struck down by SCOTUS.

#38 Comment By Siarlys Jenkins On July 6, 2015 @ 10:44 pm

From what I understand the Supremes based their decision regarding Gay Marriage on the 14th Amendment equal protection clause.

In other words since the majority of the states allow Gay Marriage then all of states should conform.

That’s not what the “equal protection” clause is about. That is what the “full faith and credit” clause is about — and its in the original constitution, not the Fourteenth Amendment. Those who bemoan that Americans are constitutionally illiterate have a very valid point.

Incidentally, setting aside various federal court orders based on the equal protection clause, a majority of states DID NOT license, regulate and tax gay couples.

The “equal protection” argument runs, if a state offers marriage licenses to heterosexual couples, then it must also offer marriage licenses to homosexual couples, because to do otherwise denies homosexual couples “the equal protection of the laws.”

That is, in my seldom humble opinion, bogus. Couples are not entitled to equal protection of the laws. Persons are. Individual persons. Racial laws identified race as a relevant category to treat individuals differently. Marriage laws did not — those who wanted to make out an equal protection violation had to wrap themselves in the label and define themselves as a class, which should undermine their claim in the first place. The law didn’t designate them a class, they designated themselves as a class.

It is a bit like if all of us who cannot bench press the minimum required to enter the military banded ourselves together as Weaklings, and filed suit that the military discriminated against Weaklings as a class because it wouldn’t let us wear the uniform and serve our country.

The “full faith and credit” argument is a narrower one. It has nothing to do with how many states do x, y or z. If one state issues a couple a marriage license, another state ought, in the ordinary course of things, to give full faith and credit to that marriage license. This could well apply if residents of one state marry there, then move to another state, even if that state does not license, regulate and tax gay couples.

I think a sound objection could be made to that. There is an ancient Massachusetts case which freed the fourteen year old slave of a woman from Louisiana who came to visit her father in Massachusetts, ‘not because entering the state made any change in her status, but because there is no authority under our laws to hold her in bondage.’ Similarly, a married gay couple who moves from Massachusetts to Louisiana does not change status, but the laws of Louisiana have no such thing as a marriage license for same sex couples, and therefore has nothing to extend to them.

Race was the occasion for the 14th Amendment. That hardly means the provisions of that amendment are restricted to race, and SCOTUS has never held it to be such, not even in the 19th Century.

Very true. In many ways, the Fourteenth Amendment vindicated an argument made by James Madison, who wanted the Bill of Rights to apply to the states as well as the federal government. Madison argued in the Federalist Papers, and in congress when the Bill of Rights was debated, that states were quite as capable as the federal government of becoming a source of tyranny.

While race was the occasion, the amendment wisely was drafted in broad terms which spoke of the rights of persons, and citizens, not of the rights of this race or that. Some of those 19th century civil rights laws, unfortunately, were drafted in terms like ‘from now on all colored people will have the same rights as white people,’ which among other things left Justice Harlan free to argue that while Plessy v. Ferguson was wrong, Chinese people are so unlike us that we properly don’t let them become citizens.

Many civil rights laws have been upheld based on congress’s power to regulate interstate commerce… but it is hard to use that as a basis for same sex marriage.

#39 Comment By philadelphialawyer On July 6, 2015 @ 11:19 pm

“Many civil rights laws have been upheld based on congress’s power to regulate interstate commerce… but it is hard to use that as a basis for same sex marriage.”

True, but then, I never said otherwise. I was responding to a specific claim about the Civil Rights laws, not the Obergefell case.

More generally…

“That is, in my seldom humble opinion, bogus. Couples are not entitled to equal protection of the laws. Persons are. Individual persons. Racial laws identified race as a relevant category to treat individuals differently. Marriage laws did not — those who wanted to make out an equal protection violation had to wrap themselves in the label and define themselves as a class, which should undermine their claim in the first place. The law didn’t designate them a class, they designated themselves as a class.”

First of all, “homosexual” is not a class made up by homosexuals, so that part is just factually false. Secondly, it is you who are wrapping yourself up in knots…the laws prevent people from marrying based on their gender and sexual orientation. And that is discrimination. Thirdly, if private business corporations can be “persons” within the reach of the 14th Amendment, and they can, says SCOTUS, it seems quite a stretch to say that couples can’t. And fourthly, your argument does not distinguish Loving, which also involved a couple. The individual folks in that case could marry, just not across racial lines. Just like individual gays can marry, but not someone of their own gender. Why did the “couple” in Loving have a right to marry, but not the couples here?

“It is a bit like if all of us who cannot bench press the minimum required to enter the military banded ourselves together as Weaklings, and filed suit that the military discriminated against Weaklings as a class because it wouldn’t let us wear the uniform and serve our country.”

It is nothing like that. What it is like is saying that gays must be allowed to join the military if they CAN do the bench press and meet all the other requirements. Gays were kept out of the Army and prevented from marrying, because they were gay, not because they didn’t meet neutral requirements based on something other than mere discrimination. And it was the Army that treated them as a class, not the gays making up a classification.

#40 Comment By James On July 7, 2015 @ 11:38 am

Also see, [11] on the subject.

And [12].

#41 Comment By JonF On July 7, 2015 @ 12:58 pm

Re: I think a sound objection could be made to that.

I’m not so sure. Doing so can lead to legal chaos. If Maryland decides to stop issuing drivers licenses to teenagers under 18, can a 17 year old licensed in Pennsylvania be charged with driving without a license if he drives over the Mason-Dixon line?

#42 Comment By Ben_C On July 7, 2015 @ 4:41 pm

Dear Sirs:

Not that I really care about this “issue” in the first place, other than I just want to stop hearing about it…and without comment on all the inanity put forward, as I simply just don’t have the time, I just want to mention a ‘few’ things:

1) The consumption of marijuana is a ‘behavior’; “marriage”, on the other hand, is a “contract”…these are two completely different things. Also, has there been a “Constitutional Amendment”, similar to the 18th and 21st Amendment, specific to marijuana tying the hands of the States? Is this ‘issue’ being dealt with on a ‘State’ level at present? Is smoking marijuana also some sort of “natural right” that is somehow protected by the US Constitution in the minds of some?

2) I haven’t heard the straw man argument: “(t)hat homosexuality existed prior to the founding of the American Republic” before.

Really???

Not to put forward another absurd analogy here, but what about any other sexual preference, such as: incest or bestiality. Did these “preferences” also predate the “American Republic”?

What about arranged marriages? How about polygamy? Did these too predate the “American Republic”?

What about “cannibalism”? Although, I suppose that’s a ‘bit’ off topic, I am wondering if “cannibalism” also predated the “American Republic”…

3) “Marriage” is, by its very nature, a “political” action in itself. The “State”, or a “State” for that matter, is not required to make something “political” in nature.

4) I know of no historical “gay marriage” documented prior to the 21st century… Can you, or anyone, cite one?

#43 Comment By Siarlys Jenkins On July 7, 2015 @ 5:21 pm

I’m not so sure. Doing so can lead to legal chaos. If Maryland decides to stop issuing drivers licenses to teenagers under 18, can a 17 year old licensed in Pennsylvania be charged with driving without a license if he drives over the Mason-Dixon line?

Absolutely. Or more precisely, if the Maryland statute specifies that it shall be unlawful for any person under the age of 18 to drive in Maryland, then the 17 year old from Pennsylvania is subject to arrest for driving in Maryland. If the statute merely says that Maryland shall grant no license to anyone under 18, but also recognizes that a driver’s license issued by another state is accepted for driving in Maryland, then you have one of those grey zones that keep lawyers prosperous.

PhillyLawyer, there is no need to urgently point out that we are not in disagreement when we say the same thing, or mutually consistent things. I’m well aware we were not arguing about the scope of the interstate commerce clause. I was responding to a number of inter-related posts as concisely as possible.

First of all, “homosexual” is not a class made up by homosexuals, so that part is just factually false.

It is a “class” insinuated in various gutter insults, it may or may not be a “class” in various sermons (many clergy would deny that there is any such thing as “a homosexual,” merely persons who sin by yielding to homosexual temptation), but it certainly is not a “class” mentioned or implied by marriage laws. Remember the old slogan “We don’t know who we are?” People who thought of themselves as “gay” had to make a point of assembling themselves AS a class.

To the extent that anyone is “prevented from marrying” based on “their gender,” that is because there is no social terrain or human function where sex is so utterly relevant and such a rational basis to discriminate as marriage, which is all about… sex! It is in the very nature of marriage that it is all about sexual union. The relevant classes are men and women, not homosexuals and heterosexuals. Marriage laws never even contemplated that such a class as “heterosexuals” existed or needed to be specified. (Unlike, e.g., antimiscegenation laws, which had to pose, specify, enforce, intrude and (most ludicrously) define what “the white race” and “the colored race” and all that rot were.

Thirdly, if private business corporations can be “persons” within the reach of the 14th Amendment, and they can, says SCOTUS, it seems quite a stretch to say that couples can’t.

I’ve been thinking that Obergefell has a lot more in common with Citizens United than it does with Lawrence, and your comment encourages me to pursue a treatise on that subject. Thanks for a useful angle of approach.

Let’s be clear: we all know that Obergefell IS the law of the land, and enforceable in every state. We are not debating what the law IS at present, but whether the court’s reasoning was flawed and might someday be reconsidered by wiser justices. I also favor reconsideration of Citizens United. You’re OK with it?

I’ve distinguished Loving many many many times. Its easy. Google my name and Loving within the TAC site, or look for it within my own. I will not waste space on this gentleman’s blog rehashing it.

What it is like is saying that gays must be allowed to join the military if they CAN do the bench press and meet all the other requirements.

Any “gay” man who wants to marry a woman and is able to consummate the marriage is free to do so. No law prevents it. No clerk ever asked a man applying for a license to marry a woman “Are you gay? Gays are not allowed to marry.” Nor has a clerk every asked “Is either of you gay? A gay person is not allowed to marry a straight person.”

#44 Comment By EliteCommInc. On July 8, 2015 @ 3:55 pm

“It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives”

Well,

it’s a bit more than that. It has established a mode of looking at through one’s emotional well being as opposed to it’s practical consequence.

It also sets a legal standard, in my view, for self definition, that ignores the very clear reality. None of us establishes our identity minus interacting with others. Even our private choices are buttressed against what we have been told, or learned from interactions with others, past ad current.

It suggest an absolute right self identification – and that in light of social, political and legal existence just does not exist, for children o adults.

There are limits. Which is why the use of the term flourishing as to intellectual and emotional expression is deceptive, because we don’t operate soley as individuals.

#45 Comment By Chuck On April 10, 2016 @ 5:31 am

Appreciate the post-surrender side change, but gays aren’t fooled. Libertarian has always been a rebranding attempt from a dying Republican conservative party. It was pretty evident from the years of crying out whenever the government intervened in requiring public business to serve, well, the public, but being completely in support of expanding government and creating laws to deny gay couples the right to marry.

Not even the young folk are fooled by libertarianism anymore. You guys are poised to fall off the map.

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